I must make amends to Janis when (and if) I ever get to Heaven. As some know, a big part of my Writ is to provoke what the Veterans Rehabilitation and Education arm of VA has been avoiding for three and a half long years. No one has stood their ground with enough legal acumen to drive an ILP claim for big, big dollars through to the Court. Most of you do not know the largesse they’ve been syphoning off to the other side of the books- i.e. the Vocational Benefits side.
Here’s the dough we’re talking about. Each severely disabled Veteran, and mind you, only the “severely disabled”, get this big ILP goody. The maximum award, per Vet, under ILP is $25,000.00 locally. If it goes over that, an authorization up to $60,000.00 must be obtained from VR&E-again-locally. If it goes over that, they refer it to the VACO down on Vermin Lane NW. On paper, there really is no limit because no one ever laid into them until member Bruce did down in Atlanta Georgia. That time they crumped and started actually granting ILP as it was intended. Seattle is a different story.
Our illustrious Mr. Boyd is a disgruntled Army Lifer who served between Vietnam and the first Gulf War I. It’s rumored that he didn’t pass the USPS employee MMPI test so he applied to the VA. He’s living proof if you hang around long enough you get promoted up to a GS-14. Of course, the downside is you still hit the mental glass ceiling . Hey, we’re talking VR&E here, not the VBA.
Mr. Boyd and company subscribe strictly to the first word in their job description (vocational) and eschew the idea that “avocational” is part of their mission. If they obfuscate long enough, as in to mid-September every year, without granting anything substantial under the ILP program, all those riches transfer over into the Vocational side to be devoted to far more deserving Vets seeking a real-yep-vocation.
Here’s the most amusing part of all this. Boyd and Co. aren’t as adroit as the front line VSRs and RVSRs, let alone in the league of a DRO. Their denial decisions are too vague and deny the exact item based on the same old standard format. This allows the camel’s nose under the tent as any lawyer can attest. By telling me I do not need another greenhouse because I already have three or four (I don’t), they are admitting I need at least one. When I say I must eat pesticide-free veggies and it’s easier to grow them, they change course and say I can (and should) go buy them. Note they are admitting they now agree with my need for pesticide-free produce. This is now a different rationale that will need another, different set of reasons and bases for the denial. And so on. Each change in denial rationale creates a quagmire of new legal defenses to buttress their logic for a new denial. In the process, they’ve lost sight of the fact that they now admit the greenhouse is necessary and vital to my independence in everyday living- BUT- my existing greenhouse(s), unheated and non-ADA compliant- is sufficient for my needs.
Also missing is any cogent rebuttal to say my cryoglobulinemia and porphyria is good to go and I can hang out outside in winter in the unheated greenhouse watching nothing grow. They merely mention they have “reviewed” my medical records. Not being doctors, they are precluded from making medical decisions a la Colvin v. Derwinski
Any first year law student knows not to give away the farm this way but the VR&E folks don’t have that “go for the jugular” like a DRO. They fail to put belts and suspenders on their ratings. Coming from the social, liberal, poly-sci side of the sheets, they couch all their denials gently and with a lot of sighs. Sighs will never substitute for CFRs and most certainly not for 38 USCs. Absent any reasons and bases for the denial other than vague “We looked at the records and the medical and decided you don’t need it.” is insufficient to stand up in a court of law. Read a denial for degenerative disc disease. It’s supported six ways to Sunday and easily defensible all the way up to the CAVC in a lot of cases. There are invariably 30 CFRs citing to both Part 3 and 4. Mr. Boyd’s failure is viewed by the Court thusly:
A bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor ‘clear enough to permit effective judicial review’, nor in compliance with the statutory requirements.
Above, you may have noticed, I used the word “locally” twice. VR&E Offices in the 58 VAROs across the planet are autonomous. Each one is a Kingdom where the Head Poobah gives the thumb up or down. If you disagree, you ask for an “Administrative Review” and it is sent to the DC VACO for a “pre” appeal. Many claims are granted right there. If it is asking for an extraordinary sum or the request is not appropriate, it goes back to the VARO for denial and proceeds through the normal appeals channel like an ordinary claim.
Mr. Boyd apparently is suffering from an ADD malady. He “lost” my NOD once and then artfully shipped the new one off to DC to be associated with my appeal on my Hepatitis in 2011. After the SOC rebuttal, he declared the grant had expired (two year maximum) and suggested I reapply.
After several more denials under various different reasons, Mr. Boyd waited patiently until the new, revised M 28 R Manual was issued on March 31, 2014. Shortly after, he utilized their brand new regulations to deny it unequivocally.
Unlike other agencies at your local Veterans Service Center, the VR&E folks have to have a listed phone number. This allows us to actually call them and talk to them. Imagine calling the most intelligent life form at the Seattle VR&E (and incidentally the head honcho) and explaining that VR&E cannot use a recent rule change to justify the SSOC. Try then to wrap your mind around the non sequitur answer:
“Well, Mr. Graham, I suggest you point out my using the new M28R in your rebuttal to the SSOC if you feel I’m wrong.” Mr. Boyd authored the decision and is oblivious to his error apparently. In VAland, he has now lost the presumption of regularity as he is unaware of his own rules and regulations. What appears irregular is irregular and the presumption that VA officials are knowledgeable in their profession does not attach…
As I said, these people have no idea what they are about. They have a fixed denial logic. There simply no longer are ILP grants other than cordless phones, shoe horns, grab bars near toilets/showers and top shelf can grabbers. A rare thing might be a set of headphones for the hearing challenged (with medical proof of deafness certificate) tied into the TV. Unfortunately, if the TV is old and incompatible with a bluetooth connection, the new M28R forbids replacement of the TV with a newer one that is.
The VA is desperately trying to strangle the ILP avocational model down to a Earl Scheib $99.95 paint job in spite of Congress’ intent. My appeal will be the first to combat this new proclivity because Mr. Boyd and his sidekick were foolish enough to state ILP was strictly vocational. With the utilization now of the new M28R as denial rationale, they have erected a huge red flag that is ripe for reversal. I doubt anyone attempted a Writ for a VR&E entitlement but who would think you’d have to fight them for twenty one years and still be getting the run around on anything?
Remember, a Writ requires the VA to explain why they screwed up. We will soon be treated to a recital of the ins and outs of ILP and most especially the new revised M28R. VA is going to have to explain in detail why a program of such extreme value cannot find 2,700 severely disabled souls to fill the slots every year and at the same time justify six different reasons why I am ineligible as well.
In VA law, you are not allowed to arrive at Court after you have denied a Vet and come up with new reasons made up ten minutes before you get there. A claim or VR&E request has to have logical reasons and bases for the denial so the poor stupid Vet can formulate a cogent defense. Otherwise, the Court says:
Next, the Secretary attempts to mitigate the Agency of Original Jurisdiction’s (AOJ) silence on the ILP Greenhouse denial cited by the petitioner by explaining why that evidence is not sufficient to support the petitioner’s arguments. The Court, however, cannot accept the Secretary’s attempt to provide a statement of reasons or bases on behalf of a silent AOJ decision followed by an equally silent SOC and SSOC. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely respondent counsel’s ‘post hoc rationalizations’ for prior agency action, advanced for the first time in the reviewing court.”).
These guys are in so far over their heads they don’t know they’ve already drowned. Unfortunately, the OGC isn’t that mentally challenged and will be trying to figure out how to get David Boyd unstuck from this tar baby.
P.S. Thanks for the heads up on the M28R brainfart, Bruce. That’s why I have minders.